COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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Armando Avila, No. 08-16-00060-CV
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Appellant, Appeal from the
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v. 419th District Court
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United Parcel Service, Inc., of Travis County, Texas
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Appellee. (TC# D-1-GN-14-000743)
ORDER
Appellant has filed a Motion to Abate Appeal and a Motion Directing Clerk to Forward
Original Exhibits. The Court has determined that it will be necessary for the trial court to
conduct a hearing to resolve certain issues before the Court rules on the pending motions.
Appellant asserts that the clerk’s record is incomplete because it does not include an
accurate copy of Exhibit 1 attached to the Plaintiff’s First Amended Response to Defendant’s
Motion for Traditional and No Evidence Summary Judgment. The District Clerk’s Office
informed the Court in response to an earlier inquiry that Appellant filed a paper version of the
summary judgment response and the District Clerk scanned that document for filing. The Court
has also been informed that the original document has been destroyed. Consequently, a
comparison of the original and the scanned document cannot be made by the District Clerk or the
Court. Appellant states in his motion that he does not have a file-marked copy of the Plaintiff’s
First Amended Response to Defendant’s Motion for Traditional and No Evidence Summary
Judgment, but it appears that Appellee has a copy of the document. The District Clerk’s Office
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informed the Court that Appellee emailed it a copy of the document. The Court requested that
the District Clerk’s Office provide a copy of the emailed document so that a comparison could be
made, but the District Clerk’s Office has failed to do so.
It is therefore ORDERED that the trial court conduct a hearing to determine whether the
Plaintiff’s First Amended Response to Defendant’s Motion for Traditional and No Evidence
Summary Judgment on file with the District Clerk’s Office is an accurate and complete copy of
the document filed by Appellant. The trial court is authorized to hear evidence relevant to this
issue. Further, Appellee is directed to provide to the trial court any copies it has of the
document. The trial court should compare the copy or copies provided by Appellee with the
document on file with the District Clerk and determine whether they are the same.
The trial judge shall enter any necessary orders and/or findings and shall forward them to
the District Clerk of Travis County on or before November 27, 2016. The District Clerk shall
prepare a supplemental clerk’s record containing the trial court’s findings and/or orders and
forward the same to this Court on or before December 7, 2016. Further, the transcription of the
hearing shall be prepared, certified and filed with this Court on or before December 7, 2016.
Appellant’s brief received on November 7, 2016 will be held and not filed until after the
issues related to the accuracy of the record has been resolved.
IT IS SO ORDERED this 7th day of November, 2016.
PER CURIAM
Before McClure, C.J., Rodriguez, and Hughes, JJ.
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